I. Introduction
One of the most distinctive features of the ICSID arbitration system is its annulment mechanism. ICSID arbitral awards are binding on the disputing parties and are not subject to any remedies, except those provided for in the Convention.1 This is a testament to the delocalized and self-contained nature of ICSID arbitration system, which is autonomous from any domestic law.2
II. The ad hoc Committee: composition and appointment
Upon registration of the application for annulment, the Chairman of the ICSID Administrative Council appoints a three-member ad hoc Committee from the ICSID Panel of Arbitrators in accordance with Article 52(3) of the ICSID Convention.4
While the ICSID Convention imposes no obligation to consult the parties about the ad hoc Committee appointment, it is ICSID’s practice to inform the parties of the proposed appointees and to submit their curricula vitae for the parties’ comments.5 That being said, with rare exception,6 the ad hoc Committees do not usually acknowledge this consultation process in their decisions.
III. Challenges of ad hoc Committee members
The ICSID Convention and ICSID Arbitration Rules do not explicitly provide for a possibility for the parties to challenge ad hoc Committee members. Article 52(4) of the ICSID Convention does not list Articles 57 and 58 (dealing with disqualification of arbitral tribunal members)7 as applicable to the annulment proceedings,8 while the ICSID Arbitration Rule 53 only generally states that the Rules apply mutatis mutandis to the annulment proceedings.9 This, however, was sufficient for the few ad hoc Committees that have faced a request for disqualification of their members to assume jurisdiction to rule on such a request.10
IV. Nature and scope of the ICSID annulment review
An ICSID arbitral award can be annulled by an ad hoc Committee on one of the following grounds:
The practice of ICSID ad hoc Committees has emphasized the following principles, which today form a consensus as to the nature and scope of the ICSID annulment review:14
Bibliography
ICSID, Updated Background Paper on Annulment for the Administrative Council of ICSID, 5 May 2016,
ICSID, History of the ICSID Convention, Vol I, 1970, pp. 230-242.
ICSID, History of the ICSID Convention, Vol II (1), 1968, pp. 422-427.
Schreuer, Ch., Malintoppi, L., Reinisch, A., Sinclair, A., The ICSID Convention: A Commentary, 2nd ed., 2009, pp. 890-1095.
Doak Bishop, R. and Marchili, S. M., Annulment under the ICSID Convention, 2012.
Dolzer, R. and Schreuer, Ch., Principles of International Investment Law, 2nd ed., 2012, pp. 301-308.
Feldman, M., The Annulment Proceedings and the Finality of ICSID Arbitral Awards, ICSID Review-Foreign Investment Law Journal, 1987, pp. 85-110.
Pirrwitz, B., Annulment of Arbitral Awards under Article 52 of the Washington Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Texas International Law Journal, 1988, pp. 94-116.
Craig, W. L., Uses and Abuses of Appeals from Awards, Arbitration International, 1988, pp. 209-213.
Delaume, G. R., The finality of Arbitration Involving States: Recent Developments, Arbitration International, 1989, pp. 21-34.
Muchlinski, P. T., Dispute Settlement Under the Washington Convention on the Settlement of Investment Disputes, in Butler, W.E. (ed.), Control over Compliance with International Law, 1991, pp. 175-193.
Schreuer Ch., ICSID Annulment Revisited, Legal Issues of Economic Integration, 2003, pp. 103-122.
Schwartz, A., Finality, at What Cost? The Decision of the Ad Hoc Committee in Wena Hotels v. Egypt, in Gaillard, E. and Banifatemi, Y. (eds.), Annulment of ICSD Awards, 2004, pp. 43-86.
Burgstaller, M. and Rosenberg, Ch. B., Challenging International Arbitral Awards: To ICSID or not to ICSID?, Arbitration International, 2011, pp. 91-108.
Derains, Y. and Sicard-Mirabal, J., Chapter 10: The Award and Enforcement Issues, in Introduction to Investor-State Arbitration, 2018, pp. 237-264.
Lim, C. L., Paparinskis, M., and Ho J., Chapter 18 - Challenging and Enforcing Awards, and the Question of Foreign State Immunities, in International Investment Law and Arbitration: Commentary, Awards and other Materials, 2018, pp. 447-476.
Legum, B. and Cho, J., Annulment: International Centre for Settlement of Investment Disputes (ICSID), Max Planck Encyclopedia of International Law, 2018, pp. 1-22.
Schreuer, Ch., Arbitration: International Centre for Settlement of Investment Disputes (ICSID), Max Planck Encyclopedia of International Law, 2018, pp. 1-25.
Le Cannu, P-J., Foundation and Innovation: The Participation of African States in the ICSID Dispute Resolution System, ICSID Review-Foreign Investment Law Journal, 2018, pp. 456–500.
Hyder Ali, A., de Gramont, A., Mellske, R. and Wessel J., Chapter 9: The Award: Form, Effect, and Enforceability, in The International Arbitration Rulebook: A Guide to Arbitral Regimes, 2019, pp. 537-590.
Tanzi, A.M., On Judicial Autonomy and the Autonomy of the Parties in International Adjudication, with Special Regard to Investment Arbitration and ICSID Annulment Proceedings, Leiden Journal of International Law, 2020, pp. 57-75.
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